May v. Blackhawk Mining, LLC

United States District Court, E.D. Kentucky, Central Division, Lexington

April 3, 2017

JEREMY MAY, Plaintiff,v.BLACKHAWK MINING, LLC, Defendant.

MEMORANDUM OPINION & ORDER

Joseph
M. Hood Senior U.S. District Judge.

This
matter is before the Court upon the Plaintiffs' Motion to
Certify Class [DE 42]. Defendants have filed a Joint Response
[DE 52], and Plaintiffs have filed a Reply in further support
of their motion [DE 56].

Plaintiff
Jeremy May commenced this class action proceeding on December
18, 2015, against defendant Blackhawk Mining, LLC. On July
15, 2016, Mr. May and Nathan Ray (“Plaintiffs”)
filed an amended complaint against Blackhawk Mining, LLC,
Spurlock Mining, LLC, and Redhawk Mining, LLC
(“Defendants”). Plaintiffs allege that beginning
on or about December 11, 2015, Defendants terminated their
employment and the employment of approximately 200 similarly
situated employees without providing 60 days' written
notice as required by the Worker Adjustment and Retraining
Notification Act, 29 U.S.C. §§ 2101 et seq.
(“WARN Act”) (DE 34, Amended Complaint)).
Plaintiffs allege that Defendants are liable under the WARN
Act for the termination of these employees without adequate
notice. (Id.) Plaintiffs now move for an order: (a)
certifying a class, pursuant to Rule 23(b)(3) of the Federal
Rules of Civil Procedure comprised of Plaintiffs and all
persons employed by Defendants Blackhawk Mining, LLC,
Spurlock Mining, LLC, and Redhawk Mining, LLC: (i) who worked
at or reported to the Mine Complex located at 1527 KY State
Route 2030 in Printer, Kentucky, 4189 Frasure Creek in
McDowell, Kentucky and Garth Hollow/Akers Branch Road in
Drift, Kentucky, (ii) who were terminated without cause on or
about December 11, 2015 or thereafter in connection with the
mass layoff(s) or plant closing(s) at the Mine Complex, (iii)
who are “affected employees” within the meaning
of 29 U.S.C. § 2101(a)(5), and (iv) who have not filed a
timely request to opt-out of the class, (b) appointing Outten
& Golden LLP as Class Counsel, (c) appointing Plaintiffs
as the Class Representatives, (d) approving the form and
manner of Notice to the WARN Class, and (e) granting such
other and further relief as this Court may deem just and
proper.

The
WARN Act provides that before instituting a “plant
closing” or “mass layoff, ” an employer
must provide sixty days' written notice to employees and
to relevant local government entities. See 29 U.S.C.
§ 2102(a). A covered employer is one that employs at
least 100 full-time employees. See 29 U.S.C. §
2101(a)(1). The WARN Act provides a cause of action for any
employee who suffers a covered employment loss without having
received the statutorily-required notice. See 29
U.S.C. § 2104. WARN Act plaintiffs have the right to
bring representative actions to enforce the Act: “A
person seeking to enforce such liability ... may sue either
for such person or for other persons similarly situated, or
both, in any district court of the United States....”
29 U.S.C. § 2104(a)(5); Young v. Fortis Plastics,
LLC, 294 F.R.D. 128, 134 (N.D. Ind. 2013) (“The
WARN Act indicates that class treatment may be appropriate in
this type of litigation, providing that a person may sue
‘for other persons similarly situated.'”);
Applegate v. Formed Fiber Tech., LLC, No.
2:10-cv-00473-GZS, 2012 WL 3065542, at *3 (D. Me. July 27,
2012) (indicating same and collecting cases).

Courts
in the Sixth Circuit have routinely certified Rule 23 WARN
class actions. See Calloway v. Caraco Pharm. Labs.,
Ltd., 287 F.R.D. 402, 408 (E.D. Mich. 2012) (motion for
certification of WARN class granted under Rule 23); In re
ABMD, Ltd., 439 B.R. 475, 490-91 (S.D. Ohio 2010). To
that end, class certification requires a two-step inquiry.
Plaintiffs must satisfy the four prerequisites of
Fed.R.Civ.P. 23(a), and then at least one of the subsections
of Rule 23(b). See Calloway, 287 F.R.D. at 406-07.
Fed.R.Civ.P. 23(a) provides for the following prerequisites:

One or
more members of a class may sue or be sued as representative
parties on behalf of all members only if:

(2)
there are questions of law or fact common to the class;

(4) the
representative parties will fairly and adequately protect the
interests of the class.

Further,
there is a common question of law or fact because “the
resolution of one particular issue will affect all or a
significant number of the members of a putative class.”
Avio, Inc. v Alffocino, Inc., 311 F.R.D. 434, 333
(E.D. Mich. 2015) (citing In re Nw. Airlines Corp.,
208 F.R.D. 174, 217 (E.D. Mich. 2002)). “Generally,
where the legality of a defendant's common course of
conduct towards the class is at issue, the commonality
component of class certification is met.” In re
ABMD, Ltd. 439 B.R. at 485. Plaintiffs claim
that they and other potential class members were terminated
as part of a common plan stemming from Defendants'
decision to idle operations at the relevant mining complex
and that Defendants would be liable as a “single
employer” under the WARN Act. The Court agrees with
Plaintiffs that the factual and legal questions stem from a
common core of facts regarding Defendants' actions and
legal issues regarding every class member's rights, as
follows: (a) whether Defendants employed more than 100
employees; (b) whether all the class members are protected by
the WARN Act; (c) whether the class members were employees of
Defendants who worked at or reported to the Mine Complex; (d)
whether Defendants discharged the class members on or about
December 11, 2015 or thereafter; (e) whether the class
members were “affected employees”; (f) whether
Defendants terminated the employment of the class members
without cause; (g) whether Defendants terminated the
employment of the class members without giving them at least
60 days' prior written notice as required by the WARN
Act; (h) whether Defendants failed to pay the class members
60 days' wages and benefit; and (i) whether Defendants
are “single employer.”

Whether
any of the members of the class was an “affected”
employee remains an open question, potentially suitable for
dispositive motion or for trial when the parties are prepared
to support their respective positions with evidence. The
issue of the merits of the claim does not, however, bear on
the issue of class certification in this instance -
notwithstanding Defendants vigorous insistence that it does.
“When . . . the concern about the proposed class is not
that it exhibits some fatal dissimilarity but, rather, a
fatal similarity-[an alleged] failure of proof as to an
element of the plaintiffs' cause of action-courts should
engage that question as a matter of summary judgment, not
class certification.” Tyson Foods, Inc. v.
Bouaphakeo, 136 S.Ct. 1036, 1047 (2016) (quoting
Nagareda, Class Certification in the Age of Aggregate Proof,
84 N.Y.U. L. Rev. 97, 107 (2009)).

“In
determining the propriety of a class action, the question is
not whether the plaintiff or plaintiffs have stated a cause
of action or will prevail on the merits, but rather whether
the requirements of Rule 23 are met.” Eisen v.
Carlisle & Jacquelin, 417 U.S. 156, 178, (1974)
(citing Miller v. Mackey Int'l., 452 F.2d 424,
427 (5th Cir. 1971)). The Court may consider “only
those matters relevant to deciding if the prerequisites of
Rule 23 are satisfied” and “may not ‘turn
the class certification proceedings into a dress rehearsal
for the trial on the merits.'” In re Whirlpool
Corp. Front-Loading Washer Prod. Liab. Litig., 722 F.3d
838, 851-52 (6th Cir. 2013) (quoting Messner v.
Northshore Univ. HealthSys., 669 F.3d 802, 811 (7th Cir.
2012) and citing Amgen Inc. v. Conn. Retirement Plans
& Trust Funds, 133 S.Ct. 1184, 1194-95 (2013));
see also Beattie v. CenturyTel, Inc., 511 F.3d 554,
560 (6th Cir. 2007); Daffin v. Ford Motor Co., 458
F.3d 549, 553-54 (6th Cir. 2006); Rikos v. Procter &
Gamble Co., No. 1:11-CV-226, 2014 WL 11370455, at *3
(S.D. Ohio June 19, 2014); Khaliel v. Norton Health Care
Inc. Ret. Plan, 287 F.R.D. 511, 512 (W.D. Ky. 2012)
(“it is not necessary to delve into the merits of the
plaintiffs' claims at the class certification stage
because proof of commonality does not overlap with the
plaintiffs' merit contentions”). Rather than
determining if the claims have merit, at this stage, the
critical question is whether the claims will “prevail
or fail in unison.” In re Whirlpool, 722 F.3d
at 858 (internal quotation marks omitted). If the plaintiff
class is “entirely cohesive, ” meaning that
however the merits issues are resolved the class will
“prevail or fail in unison, ” then the Rule 23(a)
issues of commonality and typicality will be met and
predominate over any individual questions. Id. at
858.

Defendants
apparently concede that the group of employees laid off in
2015 have the commonality and typicality which predominates
over individual questions, for they speak repeatedly of how
“all of the laid off employees were recalled to work
within six months” and how “none of the employees
laid off in December 2015 are ‘affected employees'
because each was recalled within six months.” [Response
at 1, 11.] Class certification does not require, under Rule
23(b)(3), that the plaintiff “must first establish that
it will win the fray....” In re Whirlpool, 722
F.3d at 858-59. This court seeks only “to select the
‘metho[d]' best suited to adjudication of the
controversy ‘fairly and efficiently.'”
Id. Having considered the motion, the Court
concludes that common questions far exceed the requirement of
a single common question of law or fact and that the proposed
class satisfies the commonality requirement of Rule 23(a).

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Typicality
is met for the purposes of Fed.R.Civ.P. 23(a)(3) if the class
members&#39; claims are &ldquo;fairly encompassed by the
named plaintiffs&#39; claims.&rdquo; Davidson, 302
F.R.D. at 437 (citing In re Whirlpool, 722 F.3d at
852). A claim is typical if &ldquo;it arises from the same
event or practice or course of conduct that gives rise to the
claims of other class members, and if his or her claims are
based on the same legal theory.&rdquo; Beattie v.
CenturyTel., Inc., 511 F.3d 554, 561 (6th Cir. 2007)
(citation omitted); accord Calloway, 287 F.R.D. at
407 (&ldquo;Calloway claims to have suffered the same injury
as the other potential class members; namely, Caraco
terminated them in violation of the WARN Act by not giving
them a 60 day notice before termination.&rdquo;). Typicality
under Rule 23(a)(3) should be determined with reference to
the company&#39;s actions and is satisfied when each class
member&#39;s claim arises from the same course of events and
each class member makes similar legal arguments to prove the
Defendants&#39; liability, not with respect to particularized
defenses it might have against certain class members.
Murphy v. LenderLive Network, Inc., Civil Action No.
13-cv-03135-RBJ, 2014 WL 5396165, at *4 (D. Colo. Oct. 22,
2014) (certifying WARN class over Defendant's objection
that employees who did not work in Defendant's physical
sites did not have a cognizable claim because Defendant's
alleged failure to provide notice under the WARN Act
allegedly resulted in injury to all of the putative class
members, regardless of their status as on-site or remote). In
this instance, both Plaintiffs and the potential class
members allegedly suffered injury beginning on or about
...

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